Clinton Seeks Center In Naming Ginsburg To the Supreme Court
WASHINGTON — PRESIDENT Clinton's nomination of federal Judge Ruth Bader Ginsburg to the Supreme Court, if it is confirmed in the Senate, will put two women on the top court for the first time in history.
It will also fill the court's "traditional Jewish seat" for the first time since 1969 with a justice that is generally regarded as a competent and safe choice in the moderate range of the philosophical spectrum.
But Mr. Clinton's choice - who would be the only justice on the bench appointed by a Democrat - also reflected a president acting from a position of political weakness.
The three months it took the White House to settle on a successor to retiring Justice Byron White was the longest any president has taken to make his Supreme Court choice since at least the Eisenhower era.
In those three months, Clinton ran through a succession of possible choices, letting them float quite publicly, and returned to where he began. Judge Ginsburg was one of the prominent names originally on his list. He returned to her quite suddenly over the weekend.
"He's not operating from a position of strength," says law and history professor Kermit Hall of the University of Tulsa, a leading scholar of the Supreme Court. "The weaker the president, the longer it takes to make a choice."
As recently as Friday, Clinton seemed to have the safest possible candidate from political attack or confirmation problems in federal Judge Stephen Breyer. Judge Breyer is a political moderate with sterling legal credentials and a consensus-building, non-confrontational temperament.
But over the weekend, the emergence of his failure to pay Social Security taxes for a part-time cleaning woman raised echoes of the Zoe Baird problem. Versions of these problems over household-help hiring have now torpedoed four prominent Clinton appointments.
Senate staff members believed that Breyer's problems were minor and could have been overcome to confirm him in the Senate. But the White House chose not to fight that battle, either because Clinton saw a double standard in carrying forward the nomination of a man for an issue similar to one that had killed the nominations of two women, or simply because others would argue that point.
"Having Breyer come right to the end and then drop him showed a lack of willingness to fight" on Clinton's part, says Norman Ornstein, political analyst at the American Enterprise Institute.
JUDGE Ginsburg is more conservative than her colleagues on the DC Court of Appeals, both of whom were reportedly considered for Supreme Court appointments. But she is probably less conservative than Breyer. The Ginsburg appointment generally fits Clinton's recent pattern of visibly moving toward the political center.
She is considered a judge who tends to interpret law narrowly, especially labor law, which may raise some opposition to her among labor unions.
But she has also been a leading pioneer in establishing legal protections for women in the workplace. She played prominent roles in several cases in the 1970s, where the Supreme Court struck down laws or practices that treated women and men unequally. She successfully argued, for example, that women in the military should be able to declare husbands as dependents for benefit purposes.
Court watchers expect that she will become a player in the middle of the court, which now coalesces primarily around Justice David Souter and Sandra Day O'Connor.
She may not have the even, coalition-building temperament of Breyer. Some attorneys go further to say she does not have the "big heart" that Clinton said he was seeking as a primary qualification for the bench.
"Judge Ginsburg's got a pretty tough tongue," says Professor Hall.
The other major candidate at the end of Clinton's search, Interior Secretary Bruce Babbitt, was scotched by his friends in the environmental lobby, who want to see him stay at Interior. Some environmentalists and legal experts see this as a short-sighted strategy, however, since the court is likely to be a major forum for critical environmental decisions in coming years.